The Case for Guarded Optimism
The Case for Guarded Optimism
With or without court-packing, a Biden administration will be worse than Republicans wish but better than they fear
Published on: Oct 15, 2020  |  

I don't believe "court packing," on its own terms, is a good thing. How could it be? If a democracy is relatively functioning and successful (which ours is by any reasonable measure, despite the increasingly commonplace assertion that we're a failed state), then it may not be advisable to do something that has never been done before.

But if there's anything Republicans have demonstrated, it's that an idea need not be "good" to be attempted. The blocking of Merrick Garland's nomination during President Obama's final months, from a norms standpoint, was problematic for any number of reasons, to put it mildly. At the same time, there is something refreshing about Republicans being too lazy to argue that there is something inherently coherent and principled about their approach then and now. Unless, of course, the principle is raw power: Republican senators could block Garland, so they did. Republican senators can appoint Amy Coney Barrett, so they will.

And this is why I'm torn—quite literally between the realities of power exercised without apology and the aspiration for social peace and even boredom that many of us crave after the unremitting chaos of the past four years.

Raw power is a particular way of doing politics that Americans, including myself, are instinctually uncomfortable with, because of the often difficult-to-measure concept of "norms." When someone says, "Well, yes, I guess it's legal, but you're just not supposed to do that," they're talking about norms, unwritten but respected. Norms can be broken, but they aren't usually, which is why they are norms. The near-obsession in the Trump era with "normcore," itself an idealization of a past that never was, isn't necessarily as wonderful as we might think, particularly from a progressive perspective.

As I've argued in The Atlantic:

If we think of democracies as constantly evolving—of needing to evolve at particular historical junctures—then rethinking the unspoken habits of political engagement and competition is simply a requirement of any truly progressive politics.

Norms are especially useful if you're content with the status quo, since a preoccupation with preserving norms makes radical change less likely. If America was "already great," as President Obama said in the 2016 Democratic National Convention, then norm policing, presumably, would help preserve that greatness. But if you weren't pleased with the status quo, then norms were something that could, perhaps even should, be discarded in the name of (non-incremental) change.

Historically, all transformative figures are, by definition, norm breakers. Transformation, as we know, isn't always good. But sometimes it can be, particularly during moments of stagnation and what Ross Douthat calls the drift and "repetition" of decadence. And one way to break the hold of norms is through the exercise of power. The exercise of technically legal power in the pursuit of particular ideological ends will seem just and legitimate to one side but existential and dangerous to the other.

If access to power is unequal, as it always is, then we have a problem.

Where one party plays raw, unforgiving power politics and the other party demurs, there is a fundamental imbalance that can't continue indefinitely. This is why more liberals and Democrats are now open to the notion of court-packing, where just years ago it had no real constituency.

A world where each party alternates power, but during their time with power, uses it to the full extent with utter disregard for norms or propriety is theoretically possible, and it's certainly one way of fixing the imbalance between the two parties when it comes to power's embrace. Still, even under such a scenario, each side would be constrained. As norm-breaking as the Trumpist version of the Republican Party is, it talks a big game but hasn't followed through on its supposed intent to make America a pseudo-dictatorship. Similarly, I'd have some faith that a Biden presidency, even if it pondered court-packing in theory, would back down in practice. It would simply be too controversial, and Joe Biden, is many things, but radical or bravely disregarding of past norms isn't one of them. When President Franklin Roosevelt tried it, he failed and it cast a historical shadow, so there's that too. Some things simply aren't worth the effort, when there's a good chance they won't succeed—or, if they do, that they'll be of the pyrrhic sort.

The democratic process has a way of working itself out, and there's no reason to think that a Biden administration would manage to live up to Republicans' worst fears. After all, the Trump administration didn't live up to—and I would argue couldn't live up to, because we live in a democracy—Democrats' worst fears.

There are perhaps more rarified reasons to support court-packing. Court-packing would undermine the centrality of the Supreme Court in American public life, which could be a good thing. For too long, Democrats relied on the judicial branch to advance substantive ideological goals best left to elected legislatures. Recently, we had a smart comment from a Wisdom of Crowds reader, pointing out that both parties have increasingly tried to resolve disputes not through neutral processes but by appealing to powerful "third party" institutions, and one of those, of course, is the Supreme Court. It reminded me of Samuel Moyn's excellent writing on how progressives fatally erred in seeing courts, rather than elections, as their salvation.

I'm not exactly sure how this "third party resort" problem can be resolved, since it seems a preoccupation of both parties, but one way, presumably, is to weaken those third parties. This, then, is an argument for more democracy and electoral accountability, not less. But if court-packing is seen by the left or left-of-center as a workaround to the uncertainty and disappointment of normal democratic politics, then it should be opposed. And I strongly suspect it will be opposed if and when Biden wins, despite lack of sanity, once primarily the province of the far right, having spread throughout the body politic.

The left and left-of-center, particularly the social media left, is irrational today, and understandably so. It's been a difficult and dispiriting four years. As National Review's Michael Brendan Dougherty put it: "Lots of formerly brainy people [are] just broken." But the hope, and it's certainly my hope, is that they will be less broken if Democrats do well in the November elections, not just with the presidency but also in close congressional races. As Jeffrey Sachs reminds us, there is room for irrationality in American politics. Like reasonableness and prudence, it is party of the American tradition. One just hopes it doesn't last for longer than it should. Responding to Dougherty, he writes: "You've checkmated us, or at least come as close to checkmate as our political system allows. It happened slowly, then all at once, and we’re still a bit in shock. Permit us a bit of irrationality as we try to figure out what to do next."

But what is it that Democrats, liberals, or the "left" (whoever they are) will do next? Here, Sachs offers a vaguely encouraging reply: What Democrats end up doing, emboldened by an ascendant left flank, will probably be "more terrible than Republicans feel they deserve, but not as damaging as they currently fear." And I found myself thinking, despite everything, that this was one of the more unusually optimistic declarations of this unusual era. There is something thrilling about living at the end of the world. But, alas, this is not the end of the world.